by Terry Leoni, Attorney, Rains Lucia Stern, PC
Is speech to your union representative protected? The answer to this question is “maybe”: It truly depends on the nature of the union, statutory construction, and the type of the investigation at issue.
To explain, the court in American Airlines, Inc. v. Superior Court (L.A.)held that neither California nor federal law recognizes a privilege to prevent the disclosure of relevant information between a union member and his or her representative in a civil action. ((2003) 114 Cal.App.4th 881.)
In this case, an American Airlines employee suing the company indicated that his union representative had information that supported his claim for racial discrimination. During formal court process, that representative refused to answer questions, citing that the information obtained in his capacity as a union representative was privileged and, therefore, could not be disclosed. The court disagreed, stating that the California Legislature did not create an evidentiary privilege for unions, and limited such privileged to attorneys, medical doctors, etc. Moreover, nothing in federal collective bargaining acts that permitted formation of the union spoke to such a privilege. Accordingly, no “general union privilege” exists in California or federal law that prevents disclosure of information between a union member and a representative acting in a union capacity.
However, anyone deemed a “public safety officer” under the Public Safety Officers Procedural Bill of Rights is in luck when it comes to privileged information. When enacting the Public Safety Officers Procedural Bill of Rights, the California Legislature created a union privilege for public safety officers in certain circumstances. Section 3303(i) of the Act states that any representative chosen by a public safety officer under investigation “shall not be required to disclose, nor be subject to any punitive action refusing to disclose, any information received from the officer under investigation for noncriminal matters.” (Cal. Gov. Code Section 3303(i).) With the addition of this portion of the Act, speech between anyone considered a public safety officer and his or her union representative, acting in such a capacity, is privileged. No longer can the union representative for a public safety officer be forced to release this information.
However, this “public safety officer privilege” does have its bounds. As you can see from the language detailed above, this privilege only extends to “noncriminal matters.” Therefore, any time there is a hint of criminal conduct at issue (such as a DUI, domestic violence, abuse under color of authority, or any type of misconduct that can be deemed “criminal”) the information can be obtained in administrative, civil, and criminal proceedings. In short, no such privilege exists if the information obtained from a public safety officer concerns criminal misconduct.
So, what does this mean for you? Before you confide in a union representative or obtain information in your capacity as a union representative, ask yourself a few key questions:
1) Is the officer under investigation considered a “public safety officer” under the Public Safety Officers Procedural Bill of Rights?
2) Does the alleged misconduct solely concern non-criminal conduct?
If you answered yes to both questions, you can speak freely to your union representative about the investigation or obtain information from a member that cannot be released during that investigation.
If there is any doubt in your mind about whether the alleged conduct is of a criminal nature, it would be wise to speak with or refer the matter directly to an attorney.
